27:0087(97)CA AFGE, LOCAL 3148 VS JUSTICE, BUREAU OF PRISONS -- 1987 FLRAdec CA


[ v27 p874 ]
27:0087(97)CA
The decision of the Authority follows:


27 FLRA NO. 97

UNITED STATES DEPARTMENT OF
JUSTICE, BUREAU OF PRISONS,
METROPOLITAN CORRECTIONAL
CENTER, NEW YORK, NEW YORK

              Respondent
      and

AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 3148

              Charging Party

Case No. 2-CA-60082

DECISION AND ORDER

I. Statement of the Case

This unfair labor practice is before the Authority on exceptions filed by the Charging Party (Union) to the attached Decision of the Administrative Law Judge. 1 The issue is whether the Respondent violated section 7116(a)(1), (2) and (8) of the Federal Service Labor - Management Relations Statute (the Statute) by: (1) denying an employee's request for union representation under section 7114(a)(2)(B) of the Statute at an examination in connection with an investigation; (2) proposing to suspend and then suspending the employee because he refused to participate in the examination; and (3) stating to the employee that he would be disciplined because he had refused to participate in the examination.

II. Background

Rene Hernandez is a correctional officer at the Respondent's facility. He is also a Union steward. According to Hernandez, on October 25, 1985 a disturbance occurred at the maximum security area where he was  working. At the time, he was preparing inmate log entries. 2 In responding to the disturbance, Hernandez left his log book unattended. He was approached by the Associate Warden, who asked him why the log book was left out. Hernandez replied that he had no explanation. The Associate Warden then called Hernandez' supervisor, Lieutenant Blanchard. Blanchard questioned Hernandez about the log book being left unattended and requested Hernandez to put his explanation in a memorandum, which Hernandez did.

On October 31, 1985, a meeting occurred between Hernandez and another supervisor, Lieutenant Stephen Rhoades. At this meeting Rhoades told Hernandez that Captain Ralph Humme, Chief Correctional Supervisor at the facility, had noted discrepancies between what Hernandez had told the Associate Warden about the events of October 25 and what he had stated in the memorandum requested by Blanchard. Rhoades also told Hernandez that the Captain wanted Hernandez to write a memorandum explaining these discrepancies.

The testimony of Rhoades and Hernandez, which is set forth in detail at pages 3-10 of the Judge's decision, differed with respect to the remaining portion of the conversation. Rhoades testified that Hernandez said "that maybe he would see a union rep first" (Transcript (Tr.) at 98). On further direct-examination, Rhoades testified that "as I said earlier . . . (Hernandez) said he was going to talk to the union rep" (Tr. at 105). 3 Further, on cross-examination, Rhoades testified that "when (Hernandez) first came in . . . he said that he would go see the union first and then he switched off and said that he wanted to see the warden" (Tr. at 108). Hernandez testified that he had told Rhoades that "if I have to write another memo, I would like a union representative" (Tr. at 23). The Judge credited Rhoades' testimony. 

At the end of the meeting, Hernandez prepared a memorandum which stated in part:

"On request of . . . Rhoades for a memo in the incident of 10/25/85, I respectfully refuse to write any more memo's concerning this incident (until) I speak with (the) Warden(.)"

Lieutenant Rhoades then prepared and forwarded a memorandum to Captain Humme with respect to the meeting. The memorandum, dated the same day as the meeting, states in part:

"Mr. Hernandez stated to this writer, no disrespect but, I am not (writing) a memorandum. I have (written) all the memorandum's that I am going to write. He stated that he was not going to (strengthen) their case against him and he wanted to see the union representative first. I then explained to him that I would have to write a memorandum. Mr. Hernandez stated (he would) write a memorandum stating that (he was) going to see the Warden and (he would) explain the problem to him."

In a letter of November 12, 1985, Captain Humme recommended that Officer Hernandez be suspended for 30 days for (1) providing false statements and (2) refusing to obey the instructions of a superior official in the meeting of October 31. The letter to Hernandez stated that Hernandez "refused to obey (Humme's) instructions as given to you by Lt. Rhoades. Your action in this matter constitutes a violation of Federal Prison System policy in that all employees are required to cooperate fully when questioned during investigations."

On January 6, 1986, Hernandez was suspended for 14 days by the Warden.

III. Judge's Decision

The Judge concluded that the meeting of October 31, 1985 constituted an examination within the meaning of section 7114(a)(2)(B) of the Statute. Having so concluded, he stated that the remaining issue was whether or not Hernandez' mention of a need for union representation during the meeting constituted a valid request for representation. The Judge found that it did not. In reaching this conclusion, the Judge stated that even considering the testimony in a light most favorable to Hernandez, it was not clear whether Hernandez in fact wanted union representation.

More particularly, the Judge found, among other things, that: (1) it was difficult to disagree with Rhoades' testimony that during the course of the meeting it was unclear to Rhoades whether Hernandez wanted a union representative or wanted rather to talk with the Warden because he kept "switching up"; (2) if Hernandez wanted to be represented he had the opportunity to say so in writing; (3) he could have stopped the meeting and consulted with a union representative before submitting the memorandum; and (4) he did not mention the need for union representation in the memorandum submitted to Rhoades. In view of these findings, the Judge concluded that Hernandez' mention of a union representative to Rhoades did not constitute a valid request. The Judge further found that even if there had been a valid request, Hernandez abandoned that request in favor of talking to the Warden about his problem.

The Judge therefore concluded that the Respondent did not violate section 7116 (a)(1) and (8) of the Statute by failing to comply with section 7114 (a)(2)(B). In view of this conclusion, the Judge found it unnecessary to address the contention that the Respondent violated section 7116(a)(1), (2) and (8) of the Statute by proposing to suspend and suspending the employee because he refused to participate in the October 31 examination. Finally, the Judge found that the Respondent did not violate section 7116(a)(1) by threatening the employee with disciplinary action if he did not provide the requested memorandum.

IV. The Union's Exceptions

The Union asserts that the Judge's decision is erroneous and contrary to the record evidence. In particular, the Union excepts to the Judge's findings that Hernandez: (1) in order to have made a valid request, had to repeat his request for union representation orally and in writing; (2) had to press his request for union representation before the supervisor was obligated to provide one; (3) abandoned his request for union representation; and (4) could have stopped the meeting. The Union further requests, as a remedy, that we direct the Respondent to strike all mention of the disciplinary action from its personnel files and to reimburse the employee the pay deducted during his suspension. 

V. Analysis and Discussion 4

A. Rights under 7114(a)(2)(B)

Section 7114(a)(2)(B) of the Statute provides that in any examination of a unit employee by an agency representative in connection with an investigation, the employee shall have the right to have a union representative present if the employee reasonably believes that the examination may result in disciplinary action and requests representation.

Congress' purpose in enacting section 7114(a)(2)(B) was to create representation rights for Federal employees similar to the rights provided employees by the National Labor Relations Board (NLRB) in interpreting the National Labor Relations Act (NLRA). See 124 Cong. Rec. 29184 (1978), reprinted in Legislative History of the Federal Service Labor - Management Relations Statute, at 926 (1979), where Congressman Udall explained that the purpose of the House bill provisions which led to enactment of section 7114 (a)(2)(B) was to reflect the Supreme Court's decision in NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975). See also Internal Revenue Service v. FLRA, 671 F.2d 560, 563 (D.C. Cir. 1982), enforcing Internal Revenue Service, Washington, D.C., 4 FLRA 237 (1980) (holding that under section 7114 (a)(2)(B), whether an employee has a reasonable belief that discipline may result from an examination is determined, as under Weingarten, by an objective test).

B. Whether the meeting of October 31,1985 constituted an examination within the meaning of section 7114(a)(2)(B) of the Statute

We agree with the Judge that the meeting of October 31, 1985 was an examination within the meaning of section 7114(a)(2)(B) of the Statute. Section 7114(a)(2)(B) refers to any examination of an employee in connection with an  investigation. The record reveals that (1) Respondent's representative sought further information from Hernandez concerning his statements to two management officials with respect to the events of October 25 involving a confidential log book; (2) Hernandez was requested to explain these inconsistencies in writing; (3) Hernandez had a reasonable belief that discipline could result from his written memorandum; (4) the written explanation was sought to determine whether the conduct of the employee concerning the events of October 25 and his statements to the management officials warranted discipline; and (5) management viewed the meeting as an investigation as reflected in the proposed letter of suspension dated November 12, 1985. In view of these facts, we find that the meeting of October 31 constituted an examination within the meaning of 7114(a)(2)(B) of the Statute.

C. Whether the Respondent interfered with the employee's right under section 7114(a)(2)(B) of the Statute at the meeting of October 31

As discussed above in section A, the purpose of section 7114(a)(2)(B) is to grant Federal employees a right to representation in employee examinations similar to those held by private sector employees as set forth in Weingarten. Under Weingarten, once an employee makes a valid request for union representation, the burden shifts to the employer to: (1) grant the request, (2) discontinue the interview, or (3) offer the employee the choice between continuing the interview unaccompanied by a union representative or having no interview at all. See Weingarten, 420 U.S. 251, 258-259; and United States Postal Service, 241 N.L.R.B. 141 (1979). In determining whether an employee's request is sufficient to invoke Weingarten protections, the NLRB has held generally that the request must be sufficient to put the employer on notice of the employee's desire for representation. Southwestern Bell Telephone Company, 227 N.L.R.B. 1223 (1977).

We have already determined that the meeting in question was an examination under section 7114(a)(2)(B) of the Statute. The question before us is whether Hernandez made a request sufficient to put the Respondent on notice of Hernandez' desire for union representation so as to invoke Weingarten protections. The Judge found that Hernandez did not make a valid request, and even if he had, he abandoned this request by his subsequent conduct. We disagree.

Rhoades testified that Hernandez said that "(he) was not going to write something that's going to strengthen y'all's cases or something like that,"and that Hernandez  said "maybe I need to see a union rep." In our view, Hernandez' mention of a need to see a union representative was sufficient to put Rhoades on notice that Hernandez had an interest in representation, especially since Hernandez stated at the same time that he did not want to write anything that could be used against him by management. Our conclusion is supported by Rhoades' October 31 memorandum, which states that Hernandez said: "I have (written) all the memorandum's that I am going to write. He stated that he was not going to (strengthen) their case against him and he wanted to see the union representative first. "This statement further reflects the fact that Rhoades was aware during the meeting of Hernandez' desire for union representation.

Hernandez' mention of a need for union representation, in the circumstances of this case, was sufficient to put Rhoades on notice of his desire for representation and therefore in our view constituted a valid request. See, for example, Southwestern Bell Telephone Company. See also Montgomery Ward and Company, Inc., 273 N.L.R.B. 1226 (1984). As such, Rhoades could, consistent with Weingarten principles, have granted the request, discontinued the examination, or offered Hernandez the option of (1) continuing the examination without representation or (2) having no examination at all. Rhoades simply continued the examination, however, without offering Hernandez the option of not continuing the examination or of continuing it without representation. Rhoades testified that he 'pretty much, wanted Hernandez to write the memorandum on the spot and, in fact, Hernandez prepared a short memorandum which he gave to Rhoades at the end of the examination. In these circumstances, we conclude that Hernandez properly invoked his right to union representation and did not waive that right. See, for example, Department of the Air Force, Scott Air Force Base, Illinois, 5 FLRA 9 (1981) (where the Authority stated that a waiver would be found only if it can be shown that a party clearly and unmistakably waived it).

In addition, we disagree with the Judge's finding that Hernandez could have stopped the meeting. Hernandez was being examined by a supervisor and at no time was informed that he could leave the room. It is unreasonable to conclude that in these circumstances Hernandez could have stopped the meeting on his own. More importantly, however, whether or not Hernandez could have stopped the meeting is irrelevant. The violation occurred when Rhoades continued the examination as set forth above.

Based on the above, we conclude that a preponderance of the evidence demonstrates that the Respondent failed to comply with section 7114(a)(2)(B) of the Statute and therefore violated section 7116(a)(1) and (8) of the Statute. We also find that the Respondent violated section 7116(a)(1) and (2) of the Statute by proposing to suspend and then suspending Hernandez because he refused to participate in the examination. In Internal Revenue Service, Washington, D.C., 6 FLRA 96 (1981), the Authority stated that the burden is on the General Counsel to make a prima facie showing that the employee had engaged in protected activity and that the prohibited conduct was a motivating factor in the administrative action taken by the agency. Once this is established, the agency may avoid responsibility only by showing by a preponderance of the evidence that it would have reached the same decision or taken the same action even in the absence of protected activity.

In this case, disciplinary action was taken against Hernandez because he failed to submit a memorandum as required by Rhoades at the October 31 meeting. We have found that Hernandez had a right to union representation at this meeting and that the Respondent interfered with that right by not granting his request for representation. We therefore find that disciplinary action was taken against Hernandez, at least in part, because of his insistence on a protected right.

As we stated previously in Section II of our decision, Hernandez was suspended from his job for 14 days for conduct relating to the October 31 meeting and for providing false statements. The Respondent has not shown to what extent, if any, it would have disciplined Hernandez had it not considered the conduct arising from the October 31 meeting. Since the Respondent did not show that it would have taken the same action against Hernandez even without considering that conduct, we find that its action also constitutes a violation of section 7116(a)(2).

Finally, we find, in agreement with the Judge, that the Respondent did not violate section 7116(a)(1) of the Statute by stating to the employee that he would be disciplined because he had refused to participate in the examination.

VI. Remedy

As mentioned above, the Respondent has not satisfied its burden as set forth in IRS, Washington, D.C. of showing that the decision to suspend Hernandez for 14 days would have been the same even in the absence of its consideration of the protected activity. Although Hernandez was charged with  providing false statements in addition to the charge pertaining to the October 31 meeting, the Respondent presented no evidence to show that it would have suspended Hernandez for 14 days solely on the charge of providing false statements. Rather, the record reflects that the discipline for 14 days was imposed by the Agency based on its consideration of both charges.

Accordingly, we find that the Respondent must rescind the January 6, 1986, 14-day disciplinary suspension of Rene Hernandez, expunge any reference to such suspension from his personnel records, reimburse him for the loss of pay he suffered by reason of the suspension, and restore to him any right or privilege he may have lost by such disciplinary action. If the Respondent decides that disciplinary action against Hernandez is warranted for the charge of providing false statements, a new proceeding must be instituted in which no consideration is given to the employee's conduct at the October 31 meeting.

VII. Conclusion

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, we have reviewed the rulings of the Judge made at the hearing and find no prejudicial error was committed and affirm those rulings. We have considered the Judge's Decision and the entire record. We adopt the Judge's findings and conclusions only to the extent that they are consistent with our decision.

ORDER

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor - Management Relations Statute, the United States Department of Justice, Bureau of Prisons, Metropolitan Correctional Center, New York, New York shall:

1. Cease and desist from:

(a) Requiring any bargaining unit employee of the Bureau of Prisons, Metropolitan Correctional Center, New York, New York to take part in an examination in connection with an investigation without union representation if such representation has been requested by the employee, and if the employee reasonably believes that the examination may result in disciplinary action against him or her.

(b) Discriminating against Rene Hernandez in any manner in order to discourage membership in, or activities on behalf of, the American Federation of Government Employees, AFL - CIO, Local 3148. 

(c) in any like or related manner interfering with, restraining, or coercing its employees in the exercise of the rights assured them by the Statute.

2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute:

(a) Post at the Bureau of Prisons, Metropolitan Correctional Center, New York, New York copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Warden of the Metropolitan Correctional Center, New York, New York and shall be posted and maintained for 60 consecutive days thereafter in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that such Notices are not altered, defaced, or covered by any other material.

(b) Rescind the January 6, 1986, 14-day disciplinary suspension of Rene Hernandez, expunge any reference to such suspension from his personnel records, reimburse him for the loss of pay he suffered by reason of the suspension, and restore to him any right or privilege he may have lost by such disciplinary action.

(c) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region II, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply.

We dismiss the portion of the complaint alleging a section 7116(a)(1) violation concerning the statement made to Hernandez that there would be discipline because he had refused to participate in an examination.

Issued, Washington, D.C., June 29, 1987.

Jerry L. Calhoun, Chairman Henry B. Frazier III, Member Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY 

               NOTICE TO ALL EMPLOYEES
AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY
        AND TO EFFECTUATE THE POLICIES OF THE
  FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
            WE NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT require any bargaining unit employee of the Bureau of Prisons, Metropolitan Correctional Center to take part in an examination in connection with an investigation without union representation if such representation has been requested by the employee, and if the employee reasonably believes that the examination may result in disciplinary action against him or her.

WE WILL NOT discriminate against Rene Hernandez in any manner in order to discourage membership in, or activities on behalf of, the American Federation of Government Employees, AFL - CIO, Local 3148.

WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights assured them by the Federal Service Labor - Management Relations Statute.

WE WILL rescind the January 6, 1986, 14-day disciplinary suspension of Rene Hernandez, expunge any reference to such suspension from his personnel records, reimburse him for the loss of pay he suffered by reason of the suspension, and restore to him any right or privilege he may have lost by such disciplinary action.

                            _________________________________
                                       (Activity)

   Dated:______________  By:_________________________________
                              (Signature)        (Title)

This Notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material.

If employees have any questions concerning this Notice or compliance with its provisions, they may communicate directly with the Regional Director, Region II, Federal Labor Relations Authority, whose address is: 26 Federal Plaza, Room 3700, New York, NY 10278, and whose telephone number is: (212) 264-4934.

UNITED STATES DEPARTMENT OF
JUSTICE, BUREAU OF PRISONS,
METROPOLITAN CORRECTIONAL
CENTER, NEW YORK, NEW YORK

              Respondent
    and

AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 3148

              Charging Party

Case No.: 2-CA-60082

Yvonne Hinkson, Esquire and
Martha Jordan
    For the Respondent

E. A. Jones and
Joel M. Hornstein, Esquires
    For the General Counsel

Before: ELI NASH, JR.
         Administrative Law Judge

DECISION

Statement of the Case

This is a proceeding under the Federal Service Labor - Management Relations Statute, 92 Stat. 1191, 5 U.S.C. section 7101 et seq. (herein called the Statute). It was instituted by the Regional Director of Region 2 based upon an unfair labor practice charge filed on December 3, 1985, by the American Federation of Government Employees, Local 3148, AFL - CIO (herein called the Union), against the U.S. Department of Justice, Bureau of Prisons, Metropolitan Correctional Center, New York, New York (herein called the Respondent). The Complaint alleged that Respondent violated section 7116(a)(1),(2) and (8) of the Statute by denying the request of a bargaining unit employee to be represented by the union at an examination in connection with an investigation which the employee reasonably believed could  result in disciplinary action; by proposing to suspend and suspending the employee because he refused to participate in the above-mentioned examination; and by making a statement to the above employee to the effect that there would be discipline because he had refused to participate in the examination in connection with an investigation which the employee reasonably believed could result in disciplinary action.

Respondent's Answer denied the commission of any unfair labor practices.

A hearing was held before the undersigned in New York, New York at which the parties were represented by counsel and afforded full opportunity to adduce evidence and to call, examine, and cross-examine witnesses and to argue orally. Timely briefs were filed by the Respondent and the General Counsel and have been duly considered.

Upon consideration of the entire record in this case, including my observation of the witnesses and their demeanor, I make the following findings of fact, conclusions of law, and recommendation.

Findings of Fact

Rene Hernandez is a correctional officer, who has been employed by Respondent for about six years. Hernandez is also a union steward. During October 1985, Hernandez was directly supervised by Captain Ralph Humme and Lieutenant Stephen R. Rhoades. Also during October 1985, Douglass Lansing was the Warden at Respondent's facility and Joe Brooks was the Associate Warden for Operations.

According to Officer Hernandez, on October 25, 1985 while he was working the 4 pm to 12 pm shift a disturbance occurred at about 6 pm in the maximum security area (Unit 9 south) in which he was working. At the time the disturbance occurred, Hernandez states that he was sitting at his desk preparing inmate log entries. 5 Because of the sensitive nature of the log books, Post orders or guidelines require that they be either kept in the officers possession or in a locked closet when unattended.

In responding to the commotion in his area, Hernandez left his log book unattended. Hernandez reasoned that the situation required his immediate attention. However, while in the area, he was approached by Associate Warden Brooks and duty officer Rick Olson. Associate Warden Brooks asked Hernandez "what was the log book doing left out." Hernandez states that he glanced over the other officer's desk 6 and told Brooks, "I had no explanation for him right now." Brooks then called Hernandez' supervisor, a Lieutenant Blanchard, who came to the area. Brooks told Blanchard what he had found and gave the log books to Blanchard.

Mr. Olson left the matter to Blanchard who then questioned Hernandez about what had happened. Blanchard requested that Hernandez put his position in a memorandum. Hernandez did not request union representation at that time. The memorandum states that Hernandez responded to a disturbance in the pantry area of Unit 9-South, that he defused the situation and had begun counseling several inmates when Mr. Brooks and Mr. Olson entered the area. It also states that Mr. Brooks asked him "what was the log book doing laying on my desk unattended and the cabinet open." Hernandez defended his action by stating that "the situation was created by the development of the incident. . ."

The meeting about which Hernandez was allegedly denied union representation occurred on October 31, 1985 between Hernandez and Lieutenant Stephen Rhoades. Rhoades had recently transferred into the facility and apparently had not met Hernandez prior to this meeting. Since a credibility problem exists portions of the testimony of both witnesses concerning the meeting are extracted. Hernandez testified as follows:

So I had gone into the Lieutenant's office and Lieutenant Rhoades approached me. He said the Captain wanted me to submit another memo pertaining to the incident of October 25th.

Q. And what reply, if any, did you make to Lieutenant Rhoades? 

A. I first told Lieutenant Rhoades I feel that the first memo I submitted to him was plain enough and I wasn't going to write another memo.

Q. And what else if anything did you say?

A. And then I got a little heated there, and I requested that; then he turned around and he says, well, you're going to have to write a memo.

Q. And what reply, if any, did you make?

A. I told him, I said, if I have to write another memo, I would like a union representative.

Q. And what reply, if any, did Lieutenant Rhoades make?

A. Lieutenant Rhoades says no.

Q. Is that all he said?

A. He said, no, I wasn't going to have a union representative.

Q. And then what was said?

A. There were a few exchanged words. I told him, I said, this is why the officers here don't want to come to work because the people are always fucking with them. I told him he had good officers here and they would do their jobs if they just left them alone.

And then he again insisted that I write the memo and I refused again. Again he threatened me to write me up. At that point, I told Lieutenant Rhoades, if you want a memo, I'll give you a memo. And I wrote down the memo, I respectfully refuse to give you any more information pertaining to the incident until I speak with the warden. 

Q. You just testified that Lieutenant Rhoades threatened you again. Could you relate the first time that Lieutenant Rhoades threatened you?

A. Well, when Lieutenant Rhoades asked me to write the memo, I refused. And then he said, if I didn't write the memo, he would write me up.

Q. What does that mean, write me up?

A. That means he would prefer charges against me.

Q. Okay. Then why don't you just continue the sequence and describe what happened.

A. Okay. After he threatened to write me up, all right, I told him, I want a union representative. I said; then he says, you're not going to get one. And then I got a little hot under the collar. That's when I made the statement that, you know, that's why the officers don't want to come to work over here because they're always fucking with them.

Q. You testified that you subsequently did write a memo. I'm going to show you what's marked into evidence as General Counsel Exhibit 3 and ask you if you can identify it.

A. This is a memo I gave to Lieutenant Rhoades upon his request.

Q. In the memo you state that you did not want to write any more memos until you spoke with the warden. Now why did you state that?

A. Warden Lansing had just arrived at the institution. I felt that Warden Lansing was an honorable and respectful man that I could trust.  Q. Why didn't you state in the memo you wanted union representation because that is what you had previously told Lieutenant Rhoades?

A. I didn't state it in the memo because at the time; I wrote the memo in anger. You know, I was like badgered into writing the memo so I just gave him something to satisfy him for that particular moment.

Q. At that point, what was your desire, if any, for union representation?

A. Would you repeat that?

Q. At that point when you were talking with Lieutenant Rhoades, what was your desire, if any, to have union representation?

A. I wanted to make sure that I wasn't going to incriminate myself in any way by writing a second memo so I wanted to see counsel, from a union representative, to see if they could legally do this.

Q. What happened after you wrote the memo?

A. The second memo?

Q. Correct.

A. I left the area and went back to my post.

Q. At any time did Lieutenant Rhoades offer to stop so you could obtain union representation?

A. No he did not.

Q. At any point in your conversation with Lieutenant Rhoades, did you tell him you didn't want union representation? 

A. No. I did not.

Rhoades recalled the meeting as follows:

A. Mr. Hernandez came into the office and I explained to Mr. Hernandez what the captain had said, yes ma'am.

Q. Exactly what did you say to Mr. Hernandez at that time?

A. I told Mr. Hernandez that the Captain wanted him to write a memorandum stating that there was a difference in, you know, what he told Mr. Brooks in connection with what he told him and he wondered as to why, you know, why the difference was, and why he told Mr. Brooks one thing and wrote him something else.

Q. What was Mr. Hernandez' response at that time to that statement?

A. You know, he; I don't remember just exactly all his words, but he used a lot of swear words towards Mr. Brooks and so forth, and so on. Then he said to me something to the effect that maybe he would see a union rep first, and I told Mr. Hernandez, you know, whatever he wanted to do. The only thing I wanted to know is was he going to write the memo.

And then he said, well, he wanted to talk to the warden first about it. Then he got into some more swearing about the administration. Basically what I told him was, Mr. Hernandez, the only thing I want to know is, are you or are you not going to write the memo? That's the only thing I'm interested in. That's all the Captain wants me to do, you know, that's all that I'm concerned about at the present time.

He wrote out finally something to the effect that he was going to see the warden. I give it to the Captain and that's basically it. 

Q. And that was the end of your involvement with the incident?

A. Yes ma'am. It took approximately I would say no more than ten minutes.

Q. No(w) going back you stated that Officer Hernandez said he was going to see his union representative.

A. He said something to the effect well maybe, you know, I'm not going to write something that's going to strengthen y'all's cases or something like that. He said maybe I need to see a union rep.

I said, you know, that's fine, Mr. Hernandez. Just, you know, tell me what you're going to do. You know, are you going to do that, are you going to write the memo? What are you going to do? You know, in between this time, you know, he was swearing and carrying on.

Q. Okay. What was you response to; well, did Mr. Hernandez request you to; make a request of you to provide the union representative at that time?

A. No ma'am.

Q. Did you indicate in any way to Mr. Hernandez whether or not he could have a union representative come in at that time?

A. He didn't; no, I didn't because he didn't ask for one, you know, he was saying he was going to do this. Then he was going to see the Warden. You know, it was unclear as to what he would do. You know, if he would have asked that he wanted a union rep, we have Mr. Dunn who is the local president who was there on the day watch. A female officer who was there at that time by the name of Miss Christmas. You know, there was people there if in fact that's what he chose to do, you know. You know there was people there that he could have consulted with.

Q. Now you stated that Mr. Hernandez refused at that point to write a memo until he saw either a union rep or the warden. What did you indicate to him would be your next move?

A. I told him that I was just going to write a memo stating what he said to the Captain, and that was between him and the Captain.

Q. Did you at any point indicate to him that you were going to write him up for disciplinary purposes?

A. No ma'am.

Q. Do you recall using the words, I will write you up?

A. I did not use them words. I told him that if he did not write a memo, the only thing, you know, the lieutenants, if they're told to do something, whatever the outcome is, are required to submit it back to the Captain. You know, the Captain, we return stuff to him in writing.

Q. So you would have written a memorandum to the Captain even if Mr. Hernandez had come up with a memo?

A. Yes. I would just put, enclosed is attached memo that you requested, whatever it would have been.

On cross-examination Lieutenant Rhoades also testified:

Q. Do you recall saying to Lieutenant, Officer Hernandez that he would have to sit down and write the memo first and then seek union representation? 

A. I didn't say that. You know, as I said earlier, he, at first he said he was going to talk to the union rep. Then he switched up and he was going to talk to the warden. You know, it was unclear to me what he was going to do. It was unclear to me whether or not he was going to write the memo, you know, he switched around. He, you know, first he was going to talk to the union rep, then he switched up, and then he was going to talk to the warden.

The last thing he said something to; you know, while a was in the room, was something to the effect that he was going to see the warden. He'd discuss the problem with him. I said, that's fine, Mr. Hernandez, you know.

Officer Hernandez prepared a memorandum stating that he, "respectfully refuse(d) to write any more (memo's) concerning this incident till I speak with Warden Lansing." In fact Hernandez did speak with Warden Lansing about the incident.

Lt. Rhoades forwarded his memorandum to Captain Humme dated October 31, 1985 stating:

Mr. Hernandez stated to this writer, no disrespect but, I am not (writing) a memorandum. I have (written) all the memorandum's that I am going to write. He stated that he was not going to (strengthen) their case against him and he wanted to see the union representative first. I then, explained to him that I would have to write a memorandum. Mr. Hernandez stated (he would) write a memorandum stating that (he was) going to see the Warden and (he would) explain the problem to him.

On November 12, 1985, Captain Humme recommended personnel action against Officer Hernandez for (1) providing false statements and (2) refusing to obey instructions of a superior official in that Hernandez "refused to obey (Humme's) instructions as given to you by Lt. Rhoades. Your action in this matter constitutes a violation of Federal Prison System policy in that all employees are required to cooperate fully when questioned during investigations."

On January 6, 1986, Officer Hernandez was suspended for 14 days by Warden Lansing.

Conclusions

Although this case presents possible N.L.R.B. v. J. Weingarten, Inc., 420 U.S. 251 (1975) questions, it is chiefly resolved on the basis of credibility determinations. Under Weingartin, supra, once a valid request for union representation has been made, the burden shifts to the Respondent to (1) grant the request (2) discontinue the interview or, (3) offer the employee the choice of meeting without a representative or no meeting at all.

The General Counsel submits the October 31, 1985 meeting constituted an examination in connection with an investigation under section 7114(a)(2) (B) of the Statute; that Officer Hernandez had a reasonable belief that discipline would result from a written request to Captain Humme; that Hernandez requested union representation; and, that Hernandez did not waive his right to representation. The facts clearly support a finding, and it is found, that an investigation was under way and that Hernandez reasonably believed that the investigation might lead to disciplinary action against him.

Respondent asserts that Hernandez was not denied union representation since he made no request for representation during the October 31, 1985 meeting.

Despite Respondent's assertion it is clear from the credited testimony that Hernandez mentioned a need for union representation during the meeting with Lt. Rhoades and his mention of the matter could be construed as a request for union representation. It is also clear that Lt. Rhoades disregarded what well may have been a request for union representation and insisted on a memorandum from Hernandez. The problem here is whether or not Hernandez' mention of a need for union representation constituted a valid request for such representation during the meeting. If that answer is affirmative then an additional question of whether he withdrew that request must also be examined.

Lt. Rhoades credibly testified that during the course of this short, but heated conversation it was unclear to him whether Hernandez wanted a union representative or wanted to talk with the warden because Hernandez kept "switching up." Even looking at all of the testimony in a light most favorable to Hernandez it is not clear whether he in fact wanted union representation or whether his statement in that regard was merely a reaction to further investigation because of his already documented inconsistent statements to two management officials. Examining the testimony concerning the meeting, I find it difficult to disagree with Lt. Rhoades that what Hernandez really desired at the time was confusing. Since Hernandez was a union steward, albeit with little experience it would appear to the undersigned that if he desired union representation in this matter he should have been aware how he could obtain it. Hernandez moved rather quickly through the conversation where he thought outloud about union representation, denounced management and finally, decided to petition to see the warden with his problem. In fact, the memorandum he supplied to Lt. Rhoades made no mention of union representation. In all the confusion it is entirely possible that Rhoades felt Hernandez kept "switching up" or that Rhoades wanted to get a memorandum from Hernandez setting out his position. If indeed Hernandez had wanted to be represented at that stage it is my opinion that he had the opportunity, at that time, to say so in writing. Moreover, in crediting Rhoades, it is found that Hernandez could have stopped the meeting and consulted with a union representative before submitting any memorandum on that day. Consequently, the undersigned is unpersuaded that Hernandez' mention of union representation during the course of the meeting constituted a valid request for such union representation.

Assuming arguendo that Hernandez made a valid request for union representation he seemingly vacated that request in favor of seeing the warden with his problem. Supposedly Hernandez placed trust in the fairness of the warden, prompting his request for a meeting with Warden Lansing. Hernandez also testified that he was badgered into preparing the October 31, 1985 memorandum however, he was not told what its contents should be. Rhoades prepared a memorandum at the same time and his memorandum made mention of the fact that Hernandez had, among other things, speculated about union representation. Seemingly, if Hernandez desired to continue his pursuit for union representation he would have, as previously stated, said so in the memorandum. Absent such a statement in his memorandum it appears to the undersigned that Hernandez voluntarily abandoned or withdrew his request for union representation, if indeed there was one.

In all the circumstances, noting particularly that these two individuals had never met before; that Hernandez was himself a union steward; that the conversation was heated and, that it concluded with a memorandum which supposedly set out Hernandez' wishes at the time, it is my opinion that if there was a request for union representation, it was with-drawn by Hernandez' subsequent action. Accordingly, without passing upon whether Hernandez otherwise would have been entitled to union representation, it is concluded that Respondent did not fail to comply with section 7114(a)(2)(B) of the Statute since a request for representation is a prerequisite to any obligation under that section. See Army and Air Force Exchange Service, Rocky Mountain Area Exchange, Fort Carson, Colorado, 16 FLRA 794 (1984); Department of Justice, Bureau of Prisons, Federal Correctional Institution, 14 FLRA 334 (1984). Therefore, it is concluded that Respondent did not violate section 7116(a)(1) and (8) of the Statute. 7

Additionally the General Counsel alleged that Respondent violated section 7116(a)(1) of the Statute when Lt. Rhoades indicated to Hernandez that he would be "written up" if he did not provide a memorandum. Again the credited and uncontradicted testimony reveals that Rhoades indeed stated that he was going to write a memorandum about the meeting to Captain Humme. Rhoades credibly testified that he explained to Hernandez that he would have to write a memorandum to Captain Humme concerning the outcome of their conversation no matter what that outcome might be. Clearly Rhoades had been ordered to perform a task and the memorandum was the manner in which he showed that he had performed that task. Memoranda used in such a manner are apparently commonplace at the facility. Such circumstances do not in my view connote any threat which would interfere with the exercise of rights guaranteed under section 7114 (a)(2)(B) of the Statute. Nor does it carry with it a meaning which would suggest disciplinary action. Accordingly, it is concluded that the statement allegedly attributed to Lt. Rhoades did not interfere with any employee rights granted by the Statute. 8

In light of the foregoing, it found that Respondent did not violate section 7116 (a)(1),(2) and (8)